[2023] KEELC 18702 (KLR)
The court held that since the ruling delivered on May 18, 2023 dismissed the plaintiff's suit for being res judicata, it amounted to a negative order. A negative order, by its nature, does not require any party to perform any act or refrain from doing anything, and therefore, there is nothing to stay. The court...
Source-derived case information.
- Citation
- [2023] KEELC 18702 (KLR)
- Parties
- Plaintiff: Mike Chweya; Defendant: Essau Chweya Maserea
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kapsabet
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 17 of 2022
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Judges
- MN Mwanyale
- Legal Topics
- Stay of Execution, Res Judicata, Negative Orders, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mike Chweya
Plaintiff
Essau Chweya Maserea
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether a stay of execution can be granted where the order sought to be stayed is a dismissal of a suit for being res judicata.
- 2 Whether the dismissal of a suit constitutes a negative order incapable of being stayed.
Ratio Decidendi
The court held that since the ruling delivered on May 18, 2023 dismissed the plaintiff's suit for being res judicata, it amounted to a negative order. A negative order, by its nature, does not require any party to perform any act or refrain from doing anything, and therefore, there is nothing to stay. The court relied on established appellate authority that stay orders cannot be granted in respect of negative orders. As such, the application for stay of execution, even though unopposed, lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application dated June 6, 2023 for stay of execution is dismissed.
Full Case Text
Judgment text and source record
25 paragraphs
Chweya v Maserea (Environment & Land Case 17 of 2022) [2023] KEELC 18702 (KLR) (5 July 2023) (Ruling)
Neutral citation: [2023] KEELC 18702 (KLR)
Republic of Kenya
In the Environment and Land Court at Kapsabet
Environment & Land Case 17 of 2022
MN Mwanyale, J
July 5, 2023
(FORMERLY ELDORET ELC E001 OF 2021)
Between
Mike Chweya
Plaintiff
and
Essau Chweya Maserea
Defendant
(Application for stay of execution of the ruling dated May 18, 2023. )
Ruling
1. Before Court for determination is the application dated June 6, 2023 seeking principally for stay of execution of the ruling dated May 18, 2023 pending hearing and determination of Eldoret Civil Appeal E34 of 2023.
2. The application before Court was not opposed, but the court has found it important to deliver this ruling in respect of the application.
3. In the ruling delivered on May 18, 2023, this Court upheld a Notice of Preliminary Objection and dismissed the Plaintiff’s suit for being res judicata. At the delivery of the said Ruling, the Applicant sought for a stay of execution of the Ruling, which the Court declined on the basis that a dismissal being a negative order could not be stayed.
4. Undeterred the Applicant filed the present application subject of this ruling seeking stay of execution orders.
5. As stated above the Ruling sought to be stayed dismissed the Plaintiffs case for being res judicata. A dismissal of a suit, is by its very nature a negative order, where the Court has not ordered any of the parties to perform any task.
6. The Court of Appeal in the decision inGitundu vs Wathuku (Civil Application E24 of 2021 quoted the decision in Western College of Arts and Applied Sciences vs E.P. Oranya & 3 others.
7. In the Gitundu case, the Learned Judges stated“Additionally even if we had the requisite jurisdiction, this Court has said time without number that stay orders cannot issue in respect of negative orders, where the Court has not ordered any of the parties to perform any task.”
8. Since the Plaintiff’s suit was dismissed for being res judicata, there is nothing to stay and accordingly the application dated June 6, 2023 though unopposed, lacks merits and is dismissed.
DATED AND DELIVERED AT KAPSABET THIS 5TH DAY OF JULY, 2023. HON. M. N MWANYALE,JUDGE.In the presence of;Mr. Kogo holding brief for Mr. Kiprono for Applicants.No appearance for Respondents.